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13 July 2017

How did the High Court decide that weapon sales to Saudi Arabia are lawful?

Despite the ruling on Monday, many questions remain.

By Rudy schulkind

Earlier this week, the Campaign Against the Arms Trade (CAAT) failed in its attempt to stop the UK government selling weapons to Saudi Arabia. The group had argued that selling arms to the country, which has been implicated in civilian deaths as a result of its involvement in Yemen’s civil war, breached the government’s own rules that it should not engage in weapons sales where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.
The judgement is complex. For the government to suspend arms sales, a “clear risk” threshold must be met. The judgement accepts that the government was “rationally entitled to conclude” that such a threshold had not been reached. When asked for comment, the Department for International Trade referred to Liam Fox’s statement on Monday, which argues the judgement was a vindication of the “rigour” and “anxious scrutiny” of the government’s assessment processes.

A government spokesperson said it welcomed the judgement “which underscores the fact that the UK operates one of the most robust export control regimes in the world”.

Yet Oliver Sprague, Amnesty International’s UK Arms Control Programme Director, points out the ruling did not deal with whether there is actually a clear risk that the arms might be used to commit serious violations of human rights law, only whether the government had followed correct procedure. “A lot of people are misquoting what the judgement was about, and saying things like ‘it completely vindicated the government’s decision to sell arms to Saudi, it’s given the green light to sell to Saudi’,” he says.

“I suspect, if the government had not argued in court how difficult this decision was, and how carefully they considered it, and how they are acknowledging that there are clear problems in Yemen, I think the judge may well have reached an entirely different conclusion.”  

Tom Barns, the strategic development director for CAAT, insists the humanitarian situation in Yemen didn’t come under sufficiently “anxious scrutiny” by the government.

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He says: “The law is very clear. And as far as we can see, when an entire city is declared a military target, as Sa’dah in Yemen was despite its large civilian areas . . . when schools are destroyed, mosques are destroyed, hospitals are destroyed, a funeral is hit with a double-tap air strike killing 140 civilians . . . a common sense interpretation is that there is a very clear risk that [international law] is going to be broken in the future and that arms sales should be suspended.”

Numerous NGOs contributed to CAAT’s case, says Barns. “Some gave written evidence, some gave evidence in the court, several of those organisations had commissioned a separate legal opinion which chimed exactly with our argument.”

Similarly, the UN has condemned the “grave breach of international law”, and the European parliament voted to end the arms sales. Médecins Sans Frontières and Save the Children have come to similar views independently.  As has every opposition party in the UK. Barns is not exaggerating when he calls it a “real across the board understanding”.

Putting together possible reasons for the judgement, Sprague suggests that the ruling “erred on the side of accepting the government’s narrative” in its dismissal of the reliability of NGO reports, and the panel of UN experts: “The very experts in international law and weapons that the UK (as a member of the security council) was responsible for authorising . . . for the UK to come out in court and say ‘we don’t think this is a very reliable exercise’ is quite extraordinary. And I think you would find that they’d be pretty angry at the way their research has been characterised as kind of sloppy.

“It’s essentially saying that the only way you can ascertain what’s really going on, is to ask the Saudis themselves. The way that I think the ruling has deferred to that analysis is quite startling.”

International Trade Secretary Liam Fox’s response to MPs on Tuesday shows how quickly the government is prepared to delegitimise the views from NGOs on this issue. When questioned on the reports from MSF about repeated Saudi bombing of Yemeni hospitals, Fox accused SNP MP Alison Thewliss of making “uninformed points for propaganda purposes”.

For Barns, the legitimacy and impartiality of NGO reports can be contrasted with the vested interests he says influence the government’s evidence. There are two related issues, he says. Firstly, “the same department tasked with getting their evidence together is the department that is pushing and promoting these sales in the first place”. Since the conflict began in 2015, the UK’s sale of weapons to the Saudi regime has accelerated, and now stands at £3.3bn.

Secondly, the government often relied on Saudi intelligence, which Barns says amounts to the dubious policy of “trusting the Saudis to investigate themselves for war crimes”.

This ruling is not the end of CAAT’s fight. Barns says they are immediately appealing, on the advice of their lawyers who “do not take such decisions lightly . . . they argue that there are still things about our case that haven’t been addressed properly in this judgement”.

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